RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement
It seems there are a number of discrete issues involved. 1. Can an arbitration agreement require that sharia be applied under a choice of law provision -- it would seem so to me. Some seem to see entanglement. 2. Can an arbitration agreement require that arbitrators be knowledgeable about the underlying law, in this instance, sharia. Again, it seems so to me -- some have problems with it that I don't fully understand. 3. Can an arbitration agreement require the appointment of people of a certain faith to arbitrate the dispute under the contract within that faith? Again, I see no problem, but I do understand the equal protection and establishment concerns, though they seem to not be significant to me under a contract which the parties agree is to be arbitrated according to a set of rules and they want to have certain qualifications (including religious ones) for the arbitration. 4. Can an arbitration agreement which were to be drafted in the U.S. as part of a U.S. commercial transaction or consumer transaction include a provision that requires the arbitrators to be of a certain faith in arbitrating an ordinary commercial or consumer dispute where both parties want those particular characteristics for the arbitrators (we're not talking contracts of adhesion here or regulated industries or commercial banks, etc.). Why not? 5. Can the Bank of America or a securities firm or VISA cc or any such impose such a condition -- the arbitrators must be of a certain faith? No. Because these are contracts of adhesion and affect too many people and are too standard, etc. In this circumstance the public interest in non-discrimination on the basis of religion would trump. 6. Can the same sort of companies as in 5 enter into contracts with negotiated arbitration agreements under which the consumer or borrower or investor is the one who insists on the custom arbitration clause and the sharia law interpreted by Saudi Muslims? Why not? Where is the societal interest in not treating these contracts as enforceable? The court is not getting into any religious issues or religious laws. It is just following the contract in terms of the qualifications of the arbitrators as agreed upon by the parties -- and there is nothing insidious or invidious about it. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edu wrote: That’s the issue lurking in *In re Aramco Servs. Co.*http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I agree with Nate’s neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person’s religion, whether or not it’s merely enforcing a private contract. Of course the judge won’t be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn’t himself be discriminating based on religion, may a court allow private party agreement to provide for selection – by the judge – of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That’s the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government’s oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court — a government entity — from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I use a contract clause to arbitrate using a Christian arbitration service. The clause spells out the service much like one would specify AAA to arbitrate. The clause does not give requirements for the arbitrators, just what organization will arbitrate. The reasoning is that the Bible tells Christians not to take their cases to secular courts. Does that make a difference? I was on a christian arbitration panel about 10 years ago. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I agree with Nates neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that persons religion, whether or not its merely enforcing a private contract. Of course the judge wont be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldnt himself be discriminating based on religion, may a court allow private party agreement to provide for selection by the judge of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Thats the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi governments oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramcos Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appoi nted by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didnt reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court a government entity from
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
While I am not an academic (just a practicing lawyer in New York), I understand there will be a panel at the forthcoming AALS meeting on the Beis Din (rabbinic Arbitration). There is a long line of cases in NY on Beis Din issues ranging from panel selection, panel composition to enforcement of judgments. SAMUEL M. KRIEGER -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of verizon Sent: Monday, January 03, 2011 2:00 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I use a contract clause to arbitrate using a Christian arbitration service. The clause spells out the service much like one would specify AAA to arbitrate. The clause does not give requirements for the arbitrators, just what organization will arbitrate. The reasoning is that the Bible tells Christians not to take their cases to secular courts. Does that make a difference? I was on a christian arbitration panel about 10 years ago. Alan Law Office of Alan Leigh Armstrong 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appoi nted by a court, and, (2) in the alternative, that the court
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I suspect that the contract also specifies that it is to be interpreted and applied and enforced according to Sharia law of the Wahabi school and Saudi Arabian law where the Sharia is not determinative. While I am far more familiar with much of sharia law than most American lawyers and academics I have met, I am certainly not an expert on it in sucha a way as to be able to apply it to a contract with much confidence and I know even less about the Wahabi school or jurisprudence and even less still about Saudi law. To apply the contract according to the intent of the parties, doesn't the court need to insure that the aribrators know the law that the clause want them to understand. On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ It is by education I learn to do by choice, what other men do by the constraint of fear. Aristotle ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? It seems difficult to find an equal protection violation if the Court is merely enforcing the contract. It seems to me that a more likely constitutional objection would be that the contract cannot be enforced without running afoul of the neutral principles doctrine. Can a court make a decision about who is or is not a Muslim without making theological choices? Would a shia muslim be acceptable? A member of the nation of Islam? Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge - of an arbitrator based on religion? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman Sent: Monday, January 03, 2011 7:28 AM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don't think there's any constitutional difficulty with a court's deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty - of the entanglement / religious decisions variety - with a court's deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there's a dispute about whether a person's view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion. Also, is the Batson / J.E.B. line of cases relevant here, assuming that it can be expanded to peremptories based on religion and not just race or sex? (As I recall, most lower court cases that have considered the issue have indeed expanded Batson and J.E.B. to religion.) If a court may not allow a private party to challenge a juror based on religion, even when the judge wouldn't himself be discriminating based on religion, may a court allow private party agreement to provide for selection - by the judge
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
What is the entanglement problem in Eugene's view if the Court is not being asked to decide a religious question? If ARAMCO objected to the appointment of an Ahmadi arbitrator as non-Muslim then I could see how the Court would be unable to resolve the dispute. But appointing a Muslim arbitrator that both the parties agree is Muslim means that a court does not have to reach a religious question because it has been answered by the parties before the Court can get started. And since a court can't decide whether an Ahmadi is a Muslim or not, or any similar disputed question, it will never appoint a Muslim as an arbitrator where the parties disagree about whether he/she is Muslim. I also don't see how it creates other entanglement problems such as ongoing surveillance. For the same reasons I don't see a problem where a court enforces a corporation sole's documents. A court does not get entangled in a religious question by deciding that Mr. X is the Catholic Bishop of Utopia. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 4:19 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don’t think there’s any constitutional difficulty with a court’s deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty – of the entanglement / religious decisions variety – with a court’s deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there’s a dispute about whether a person’s view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more. Sufi Saying ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, In your mind does the constitutional difficulty arise from the court choosing a Muslim arbitrator under the contract or from the enforcement of a contract involving religious terms? Suppose, for example, that the parties had -- pursuant to the contract -- chosen Muslim arbitrators, who had arbitrated the dispute, and then one the parties sought to enforce the arbitration award in court. Could the other party defend on the ground that the court was being asked to enforce an arbitration that was infected with unconstitutional religious discrimination? Frankly, I am skeptical of the equal protection argument here. I don't see how you can get an equal protection violation without doing some sort of Shelly v. Kramer end run around the state action doctrine, and I think that such an end run is both unlikely to succeed and as a normative matter should be done only sparingly. I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. Best, NBO Nathan B. Oman Associate Professor William Mary Law School P.O. Box 8795 Williamsburg, VA 23187 (757) 221-3919 I beseech you, in the bowels of Christ, think it possible you may be mistaken. -Oliver Cromwell On Mon, Jan 3, 2011 at 4:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don’t think there’s any constitutional difficulty with a court’s deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty – of the entanglement / religious decisions variety – with a court’s deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there’s a dispute about whether a person’s view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Steven Jamar *Sent:* Monday, January 03, 2011 12:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Love the pitcher less and the water more
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I think that the entanglement question would most clearly arise when the dispute is whether someone really knows Sharia as Islamic law (rather than just as Saudi law), and the heart of the disagreement really goes to how he interprets Islamic law. I think there would also be an entanglement question if the court appoints an arbitrator that one party thinks is Muslim and the other doesn't. Nor could that be resolved, I think, by simply saying that the court should just reject any arbitrator to whom the party objects on the grounds of the arbitrator's supposed non-Muslim-ness, unless the contract so provides. The clearer First Amendment problem, I think, stems simply from the court's selecting an arbitrator based on religion, even when the contract so demands. But that is a violation of the nondiscrimination doctrine of First Amendment law, not the nonentanglement doctrine. Also, in the example that Eric points to -- where a court considers appointing an Ahmadi as an arbitrator, one party objects by saying he's not really Muslim, and the court therefore rejects the Ahmadi -- the religious discrimination strikes me as particularly serious, because there isn't even the justification that the judge is just enforcing the contract in appointing a non-Ahmadi. The contract just says that the arbitrator must be Muslim; a judge's rejecting someone because some people don't think he's really Muslim strikes me as religious discrimination by the court, and not just in implementing the clear terms of the contract. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, January 03, 2011 1:54 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? What is the entanglement problem in Eugene's view if the Court is not being asked to decide a religious question? If ARAMCO objected to the appointment of an Ahmadi arbitrator as non-Muslim then I could see how the Court would be unable to resolve the dispute. But appointing a Muslim arbitrator that both the parties agree is Muslim means that a court does not have to reach a religious question because it has been answered by the parties before the Court can get started. And since a court can't decide whether an Ahmadi is a Muslim or not, or any similar disputed question, it will never appoint a Muslim as an arbitrator where the parties disagree about whether he/she is Muslim. I also don't see how it creates other entanglement problems such as ongoing surveillance. For the same reasons I don't see a problem where a court enforces a corporation sole's documents. A court does not get entangled in a religious question by deciding that Mr. X is the Catholic Bishop of Utopia. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 4:19 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? My view is that being a Muslim is not a limitation on being an arbitrator that a court may properly enforce, given the First Amendment and the Equal Protection Clause. I don't think there's any constitutional difficulty with a court's deciding whether someone adequately knows Sharia as it is understood in Saudi Arabia, though I imagine a court would have a pretty difficult time resolving such matters; it would make much more sense to leave the appointment of such an arbitrator to a private entity (or to a Saudi government entity). There might be a constitutional difficulty - of the entanglement / religious decisions variety - with a court's deciding whether someone adequately knows Sharia as Islamic law as such, for instance if there's a dispute about whether a person's view on a Sharia question shows ignorance or just shows disagreement about theological matters. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Monday, January 03, 2011 12:38 PM To: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Eugene, do you contend that knowledge of the Sharia is not a valid limitation or only that being a Muslim is not? On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote: must know the Shari'a, commercial laws and the customs in force in the Kingdom -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene, In your mind does the constitutional difficulty arise from the court choosing a Muslim arbitrator under the contract or from the enforcement of a contract involving religious terms? The former; I don't see any inherent problem in enforcing the results of a religious arbitration. Suppose, for example, that the parties had -- pursuant to the contract -- chosen Muslim arbitrators, who had arbitrated the dispute, and then one the parties sought to enforce the arbitration award in court. Could the other party defend on the ground that the court was being asked to enforce an arbitration that was infected with unconstitutional religious discrimination? Frankly, I am skeptical of the equal protection argument here. I don't see how you can get an equal protection violation without doing some sort of Shelly v. Kramer end run around the state action doctrine, and I think that such an end run is both unlikely to succeed and as a normative matter should be done only sparingly. I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should
Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I’m no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person’s religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn’t motivated by religious animus; it’s just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I think that we want to allow people to use the law to create illiberal arrangements, so long as such arrangements don't pose a threat to the basic liberal order. The widespread use of racially restrictive covenants given the American experience with race posed such a threat. I have a hard time seeing that voluntary commercial arbitration under sharia law poses such a threat. Hence, in response to Marci's initial question of what about a contract that called for an arbiter based on race or gender, my default position is to say No problem. Let people write the contracts that they wish to write. This, however, is only a default. If Marci and other skeptics can tell a sufficiently compelling story about how this particular practice or form of private discrimination threatens the liberal order, then I think that we have a reason for denying enforcement. (I suspect that Marci and I would differ on what constitutes a threat to the liberal order.) Even in these cases, I think that as a doctrinal matter it makes more sense to do this via things like the void as against public policy doctrine under contract law rather than through a convoluted reading of the equal protection clause. I think that the neutral principles doctrine has a bit more traction, although even there I am skeptical. At some point I think that the first amendment is implicated when a court makes religious identifications, but it seems to me that in order for courts to be cognicient of religion in ways that I am assuming are uncontroversial -- such as for purposes of providing free exercise protection or policing establishment clause violations -- courts will have to be able to make religious identifications. It is not clear to me that a contract calling for a Saudi national who is a Muslim will -- as a practical matter -- raise these sorts of problems. A contract calling for a pious and orthodox Muslim in contrast, might. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
My sense is that the prison and military contexts aren't just justified on the grounds of the governments attend[ing] to the specific needs of an identifiable group -- that would equally apply to parochial school funding (even of a sort that goes far beyond what was allowed by Zelman and Mitchell v. Helms), the law struck down in Thornton v. Caldor, the law struck down in Kiryas Joel, and more. Rather, the premise, as I understand it, is that in the few intrusive-control contexts in which the government segregates people from normal religious life, and limits their ability to access their own religious institutions, the government may itself provide religious services (even though it would normally be broadly barred from that, by a wide range of First Amendment doctrines). In the court system, I don't see any similar limitation on people's ability to get religious dispute resolution: People remain free to have their disputes arbitrated by religious institutions, and to have those arbitrations be enforced, so long as they simply provide in their contracts that the arbitrators are to be chosen by some private entity (or even some foreign government entity). So I see no special justification for relaxing the normal First Amendment non-discrimination and no-religious-decisions rules here, nor any substantial similarity to the highly unusual (as First Amendme! nt law goes) contexts of prisons and the military. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 4:09 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? To say that military and prison chaplains get special treatment under First Amendment law isn't to explain why that should be so or why it should be restricted to that context. With chaplains, the govt appoints people based on specific religious qualifications to attend to the specific needs of an identifiable group. Under the hypo we're dealing with here it seems to me that's all the court is being asked to do. If it isn't objectionable in one context, why is it in another? On Jan 3, 2011, at 1:31 PM, Volokh, Eugene vol...@law.ucla.edu wrote: One difficulty is that we don't have much law on what constitutes a BFOQ where religion is concerned. But I think military (and prison) chaplaincy cases are generally treated very differently under the First Amendment than other kinds of cases, as to a wide range of First Amendment doctrines -- the ban on religious discrimination, the ban on religious decisions by the government, the ban on government funding of religious practice, and more. So I'm not sure the BFOQ analysis would be that helpful here, or that those cases are generalizable outside the military/prison context. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 3:28 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
It is helpful to remember that in the actual case the contract (at least according to the Texas Ct. of Appeals) did not call the for a court to appoint the arbitrator(s). As Steve Sanders pointed out, a properly drafted contract would avoid the problem we are discussing by providing for private appointment of arbitrators. The question would still remain whether an arbitration award given by such arbitrators should be enforced by a US court. I don't know much about them, but I think the Jewish arbitration cases say the answer is yes. There would still, I suppose, be a question whether the arbitral award might be denied enforcement on other grounds, such as arbitrator prejudice against non-Muslim-owned entities, if such prejudice could be shown, or other bases for denial of enforcement of arbitral awards in general. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 7:06 AM To: Law Religion issues for Law Academics Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? That's the issue lurking in In re Aramco Servs. Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which were at the time Delaware corporations headquartered in Houston, though Aramco Services is a subsidiary of Saudi Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil company) signed an agreement under which DynCorp was to create a computer system (in the U.S.) and install it at Aramco's Saudi facilities. The contract provided that it was to be interpreted under Saudi law, and arbitrated under Saudi arbitration rules and regulations. Those rules and regulations apparently call for the arbitrators to be Muslim Saudi citizens. The trial court, however, appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the contract the arbitrators were not supposed to be appointed by a court, and, (2) in the alternative, that the court erred in appointing non-Muslim non-Saudis. The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn't reach item 2. But there is an interesting constitutional issue lurking in the background: If a contract does call for a court to appoint arbitrators, and provides that the arbitrators must be Muslims (or Jews or Catholics or what have you), may a court implement that provision, or does the First Amendment or the Equal Protection Clause bar the court - a government entity - from discriminating based on religion this way, even pursuant to a party agreement? Any thoughts on this? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
Eugene writes, By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Just to clarify your point, Eugene - Is the distinction you are drawing one that distinguishes between government resources being allocated by private decision makers on the basis of religion and a government actor allocating private resources on the basis of religion. So for example - if to avoid overcrowding in the courts, the government financed arbitration panels to resolve contract disputes and the parties agreed to select arbitrators of a particular faith to hear their dispute, that would not be a problem. But if a judge chooses arbitrators based on religious belief who will be paid by the parties (according to the terms of the arbitration clause in their contract), that would create a constitutional problem. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 2:29 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I wrote: I'm no great fan of the more expansive readings of Shelly. But when a government actor is deciding who gets a particular (lucrative) position based on that person's religion, it seems to me that state action is eminently present, or more specifically that the government actor is discriminating based on religion in presumptive violation of the Free Exercise Clause and the First Amendment. To be sure, the government actor isn't motivated by religious animus; it's just trying to enforce a contract. But it is still deliberately treating people different from other people based on whether they are Muslims or not. (When the court just enforces an arbitration conducted by a private party, there is not such discrimination by a government entity, even if the private party discriminates based on religion or sex in selecting the arbitrators.) Nathan Oman writes: Why say that the government is discriminating on the basis of religion if it is simply apply neutral principles of contract law. I understand that there is a question as to whether the contract can be enforced using merely neutral principles, but that isn't your argument here. Rather, I take it that your objection rests on a non-discrimination principle. Where is the discriminatory legal principle at issue? I don't see a discriminatory legal principle at issue here. But I see a discriminatory decision by a judge: I will not appoint Joe Schmoe as an arbitrator, because he is not Muslim. To be sure, the judge is just enforcing a contract. But he is still a government actor, allocating a particular post based on religion. That he is just doing that in enforcing a contract does not, I think, prevent his discriminatory conduct from being state action. By the way, what do you think about a state university administering a privately funded scholarship for Christian students? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
A few thoughts in response to Eugene's email below: Eugene's recounting of what would happen in the Ahmadi hypo leaves out an important step: after one party objects to the Ahmadi as non-Muslim, the Court won't just act immediately. The other party to the arbitration has to take a position. If both (or all) the parties can't agree before the court that the Ahmadi is not Muslim for purposes of the contract, the Court cannot proceed. Thus the Court will always be dealing with a stipulation about the underlying religious question, not simply one party's objection, and won't be deciding a religious question. If the parties can't agree one way or the other, then the Court can't act. I also don't accept Eugene's main point. How is it discrimination (or entanglement) for a court to abstain from deciding an underlying religious question? Was the Supreme Court discriminating against one group of Russian Orthodox by deciding Kedroff the way it did? It is not discrimination in the invidious discrimination sense for one person to say that another person is not really [Religion X] or to exclude them from a particular religious group. That sort of distinction is in the very nature of religious discourse, which *always* includes disputes over things like identity (cf. whether a child born to a Jewish father and a non-Jewish mother is halachically Jewish). It is no more discriminatory or immoral for a court to uphold two parties' agreed understanding of who happens to be Muslim (whether that is set forth in the terms of a contract or by stipulation before the Court), than it is for a court or the police to order someone forcibly removed from a house of wor! ship who has been rejected for leaving the faith. What if the contract said that the arbitrator had to be the sitting Roman Catholic Bishop of Rome? If the parties agree the Pope is Catholic, who is the court to disagree? Should law profs or other potential arbitrators feel discriminated against because they weren't on the list? Re Eugene's other (and I take it primary -- the original post mentioned only the Muslim identity of the arbitrators -- ) concern about entanglement, I don't see how being knowledgeable about Sharia necessarily implicates belief in a religion. I've learned a lot about particular aspects of Sharia representing Muslim clients but that is not affected by whether I am a Muslim or not. Finally, I add a personal note of surprise that I seem to be taking a more classically libertarian position than Eugene is! There's got to be something wrong with that. :) Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 5:04 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I think that the entanglement question would most clearly arise when the dispute is whether someone really knows Sharia as Islamic law (rather than just as Saudi law), and the heart of the disagreement really goes to how he interprets Islamic law. I think there would also be an entanglement question if the court appoints an arbitrator that one party thinks is Muslim and the other doesn't. Nor could that be resolved, I think, by simply saying that the court should just reject any arbitrator to whom the party objects on the grounds of the arbitrator's supposed non-Muslim-ness, unless the contract so provides. The clearer First Amendment problem, I think, stems simply from the court's selecting an arbitrator based on religion, even when the contract so demands. But that is a violation of the nondiscrimination doctrine of First Amendment law, not the nonentanglement doctrine. Also, in the example that Eric points to -- where a court considers appointing an Ahmadi as an arbitrator, one party objects by saying he's not really Muslim, and the court therefore rejects the Ahmadi -- the religious discrimination strikes me as particularly serious, because there isn't even the justification that the judge is just enforcing the contract in appointing a non-Ahmadi. The contract just says that the arbitrator must be Muslim; a judge's rejecting someone because some people don't think he's really Muslim strikes me as religious discrimination by the court, and not just in implementing the clear terms of the contract. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, January 03, 2011 1:54 PM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? What is the entanglement problem in Eugene's view if the Court is not being asked to decide
RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?
To be appointed a chaplain, a person needs an ecclesiastical endorsement from a recognized endorsing agency connected with the person's faith group. See http://www.goarmy.com/chaplain/about/requirements.html Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Steve Sanders Sent: Mon 1/3/2011 6:27 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? Is someone applying for a military chaplaincy required or expected to have some religious qualification or membership in a religious order? Could a nonbeliever who nonetheless has an extensive academic knowledge of religion sue for discrimination if she's denied such employment? On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'm not sure whether BFOQ doctrine as to religion helps us much as to the First Amendment analysis. That private entities aren't barred from discriminating based on religion in some contexts doesn't necessarily tell us, I think, that the government has an equally free hand. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, January 03, 2011 12:53 PM To: religionlaw@lists.ucla.edu Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? I recognize this isn't an employment discrimination case, but is the constitutional problem eased if the religion of the arbitrators could be considered a bona fide occupational qualification? We recognize constitutional exceptions for those, right? Per Marc's question, presuming the contract was otherwise valid under state law, it's not clear to me that merely appointing arbitrators who are qualified according to the terms of a contract amounts to a court applying sharia law. Evidently it's the arbitration panel, not the court, that is called on to apply sharia law in the course of interpreting the contract. Generally, the whole point of arbitration is to avoid the courts as much as possible through a private, extrajudicial mechanism for settling disputes. Parties typically agree on arbitrators without the involvement of a court. Thus, it seems to me that if an arbitration agreement is properly drafted, the constitutional issue of a court's discriminatory appointment process shouldn't arise as a matter of design. Steve Sanders Quoting Marc Stern ste...@ajc.org: But would this agreement be enforceable in Oklahoma ,with its ban on courts applying sharia law? Marc D. Stern Associate General Counsel 165 East 56th Street NY NY 10022 ste...@ajc.org 212.891.1480 646.287.2606 (cell) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, January 03, 2011 02:33 To: Law Religion issues for Law Academics; Eric Rassbach Subject: Re: May American court appoint only Muslim arbitrators,pursuant to an arbitration agreement? The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that? I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach erassb...@becketfund.org wrote: Here is the relevant provision (in translation) from the case-link Eugene sent around: The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst the members of the liberal professions or other persons. He may also be chosen amongst state officials after agreement of the authority on which he depends. Should there be several arbitrators, the Chairman must know the Shari'a, commercial laws and the customs in force in the Kingdom. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, January 03, 2011 11:46 AM To: Law Religion issues for Law Academics Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? I agree with Nate's neutral principles / entanglement argument. But I wonder whether one can so easily dismiss the equal protection argument from the enforcement of the contract. The court, after all, would have to decide who gets to perform an important and lucrative task based on that person's religion, whether or not it's merely enforcing a private contract. Of course the judge won't be acting based on religious animus, but he will be deliberately treating people differently based on religion
